THE MODERN FISH ACT IN THE SENATE: SOME PROMISE, BUT MANY PERILS

On the morning of February 28, the Senate Committee on Commerce, Science, & Transportation marked up and approved S. 1520, the Modernizing Recreational Fisheries Management Act.

The Committee’s action was hailed by a coalition of fishing tackle industry, boatbuilding and anglers’ rights groups, which has been trying to relax regulations governing recreational fishing in federal waters by weakening the conservation and stock rebuilding provisions of the Magnuson-Stevens Fishery Conservation and Management Act.  And it was decried by a number of conservation organizations, which have long been defending Magnuson-Stevens from attack by elements of both the recreational and commercial fishing industries.

While the version of S. 1520 reported out of Committee remains a seriously flawed bill, and one not yet worthy of passage, the current version is far less offensive than the bill initially introduced in the Senate, and represents far less of a victory for Magnuson-Stevens’ critics than their recent press releases would have folks believe.  

In its present form, S. 1520 demonstrates both the promise and perils of this particular piece of legislation.

There is promise because a lot of bad language was removed from the bill, thanks to its sponsor, Roger Wicker (R-MS) and a bipartisan group of senators, who were willing to work together to address many of the public’s concerns.

Language that would have exempted both data-poor stocks and those that have not been recently assessed—both circumstances could render stocks particularly vulnerable to overfishing—has been deleted from the legislation.  New language that provides the Secretary of Commerce, and so federal fishery managers, with criteria to determine whether a fishery management plan is not achieving its goals has been added in.   

And a rule of construction has been added, which states that nothing in the bill should be construed to modify Magnuson-Stevens’ current requirements that overfishing be avoided, that stocks be managed for optimum yield, that scientists set the maximum harvest levels, and that annual catch limits and accountability measures are included in every fishery management plan.

That’s the good news. 

In addition, language that would have authorized the use of “alternative” management measures—that is, alternative to fixed annual catch limits that prevent overfishing—has been modified, and now merely memorializes in law management approaches that are already permitted by regulations. 

Other language, that would have almost certainly biased a planned study against catch shares (more properly called “limited access privilege programs”) was scrapped, as were some very burdensome requirements that the National Marine Fisheries Service would have had to fulfill before issuing an exempted fisheries permit to further research goals.

And provisions that could have significantly weakened the quality of the science used in stock assessments and other data-gathering activities, by incorporating potentially biased information provided by fishermen and other “nongovernmental” sources who lacked scientific training, was toned down quite a bit, although not completely removed.

That’s the not-bad news. 

It’s nice that there’s promise, but the peril of the bill remains very real.

S. 1520 would still require the South Atlantic and Gulf of Mexico regional fishery management councils, within two years after the law is enacted, to review the commercial and recreational allocations in all of the fisheries that such councils manage, and to reexamine such allocates every five years.  Given that allocation is always an extremely difficult and divisive topic, and that allocation debates are always bitter and seldom come to workable conclusions, such requirement places an unreasonable burden on the time and resources of the councils.

To understand the volume of work involved, consider the fact that the South Atlantic Fishery Management Council manages 75 different species, and that the Gulf of Mexico Fishery Management Council manages at least 35 more.  Then think about how long, divisive allocation debates about how to allocate many of such species would divert council members from their primary responsibility to conserve and manage fish stocks.

S. 1520 would also still require a study of limited access privilege programs, which have a proven record of success in ending overfishing in commercial fisheries.  In the Gulf of Mexico red snapper fishery, for example, such a program halted overfishing in the commercial sector more than a decade ago, while the recreational sector still regularly exceeds its allocation, causing the stock to be overfished by 212% in 2017.

Worse, the bill would impose a two-year moratorium on the establishment of new catch share programs, and so prevent fishery managers from using them to end overfishing.  It’s not clear why such a moratorium would be so important to the recreational fishing groups supporting the bill; if commercial overfishing is halted, there will be more fish in the water for anglers to catch.  But keeping more fish in the water has never appeared to be such groups’ concern, and some of them have vehemently opposed catch share programs forquite a long time.

Finally, as mentioned above, S. 1520 specifically provides for the use of certain management measures in recreational fisheries, even though such measures may already be employed, and are described in detail by NMFS in its Guidelines to National Standard One.  Given that laws are generally assumed to change the status quo—after all, if no change was intended, why did anyone need to pass such a law?—there remains a risk that a court may construe such language to mean that the specified measures are intended to replace, rather than augment, annual catch limits.  Should that happen, overfishing will likely result.

That’s the bad news.

But it’s only part of the peril.

S. 1520 isn’t, as a whole, a good bill.  It does have a few good provisions, surrounded by a lot of equivocal language and some remaining bad sections.  

That would be fine if it just represented a starting place in the debate.

But what everyone needs to understand is that S. 1520, as approved by Committee, probably represents the high point of the Modern Fish Act.  After this, things are likely to head sharply downhill.

Remember that, in order to reach the President’s desk, identical versions of a bill must pass both houses of Congress.  While a version of the Modern Fish Act, designated H.R. 2023, has been introduced in the House of Representatives, that bill is very different, and far worse, than the version of S. 1520 that was introduced in the Senate, much less the revised bill that was voted out of Committee.  It not only retains all of the bad language that was removed from S. 1520, but also includes even worse provisions that never made it into the Senate bill, such as multiple exceptions to the annual catch limit requirement an a permanent moratorium on catch share programs in the South Atlantic and Gulf of Mexico.

H.R. 2023 and S. 1520 are very different, so if both were passed, representatives of the House and Senate would have to meet and agree upon compromise legislation that reconciled the differences.  There is absolutely no doubt that any such compromise would include some, and possibly most, of the bad language of H.R. 2023, and so significantly impair Magnuson-Stevens’ ability to conserve and rebuild fish stocks.

Unfortunately, that is neither the worst nor the most likely scenario.

Many of H.R. 2023’s provisions were instead incorporated into H.R. 200, the Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act.  That’s a long title to keep repeating, so you can feel free to refer to the bill as the “Empty Oceans Act,” a name bestowed upon it by the conservation community, because of the impact that it would probably have on fish stocks and marine habitats.

There’s a real possibility that the now only moderately malign S. 1520 will, like H.R. 2023, be folded into a larger Magnuson-Stevens reauthorization bill.  Should such a bill pass in the Senate, and should H.R. 200 pass in the House, those bills would also end up being reconciled in conference; whatever compromise finally emerged would undoubtedly retain enough of H.R. 200 to badly weaken Magnuson-Stevens’ conservation and management provisions.

That, too, would clearly be bad, but the ultimate nightmare scenario wouldn’t involve a Magnuson-Stevens reauthorization bill passed by the Senate.  Instead, it would see S. 1520 and H.R. 200, with its Modern Fish Act provisions, referred to a conference committee, even though S. 1520 was never intended to be a reauthorization bill.

Should that be done, the Magnuson-Stevens reauthorization would be effectively written by the conference committee, using H.R. 200 as their only model.

It’s hard to imagine anything good coming out of that.

Thus, S. 1520 must be viewed in the proper context.

While the bill may be better than it was, it’s still flawed, and its passage would be accompanied by many possible perils. 

The true promise of the legislation lies not in the bill, but in the bipartisan cooperation that shaped it into the form that emerged from committee. 

Instead of passing S. 1520, the Senate should expend every effort to preserve spirit of bipartisan cooperation that gave the bill its current form, and in that spirit, produce a comprehensive, bipartisan Magnuson-Stevens reauthorization bill that addresses the needs and concerns of every sector, not merely one, a bill that will better assure that all United States fishermen enjoy healthy fish stocks, and not empty oceans, well into the future.